Supreme court seeks government's response on convict politicians

The Supreme Court has asked the Centre to justify a dichotomy in election law.

Under the present rules, a sitting MP or MLA convicted of a crime is allowed to complete his term pending an appeal, but a person convicted and sentenced to a term of over two years is banned from even contesting an election.

A bench comprising Justice A.K. Patnaik and Justice G.S. Misra asked the government to file an affidavit to rebut the charge that Section 8(4) of the Representation of the People Act (RPA) was violative of the fundamental right to equality under Article 14 of the Constitution.

"If an ordinary citizen does not get this kind of benefit while he remains a convict, why should MPs get it?" the bench asked.

It said the Centre should explain how Section 8(4) of the RPA was not in conflict with Articles 14 and 102 of the Constitution which dealt with the disqualification of MPs.

According to Article 102(1)(e), a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is disqualified by or under any law made by Parliament.

The query came while the court was hearing two PILs - one by advocate Lily Thomas and the other by NGO Lok Prahari - on the issue. Thomas has sought quashing of Clause (4) of Section 8 of the RPA, which carves out an exception for sitting MPs and MLAs.

According to Section 8, a convicted person sentenced to imprisonment of over two years is disqualified from contesting elections for six years 'since his release'.

But if the conviction is for dowry, food adulteration, hoarding and Sati offences, the same bar applies if the sentence is over six months.

Further, mere conviction is enough to bar a person for six years if the offence relates to untouchability, TADA, insult to flag, etc.

Clause (4), however, carves out an exception. If the convicted person is a sitting MLA or MP, he can continue to be a member till the dissolution of the House if he files an appeal within three months.

Such legislators, however, cannot contest fresh elections while their appeal is pending.

For the purpose of filing of nominations, he would stand disqualified like any other candidate who had been sentenced for a term of over two years.

In other words, a legislator who has been sentenced to over two years imprisonment is not qualified to become an MP or MLA for a fresh term, but sub-section 4 of Section 8 of the RPA provides him protection against such disqualification if he is convicted after his election.

He can continue as a member of the House till a final decision on his appeal.

The provision for disqualification of convicted legislators was clearly justified under the Article but the exception, it is being contended, was not.